Speak No Evil

On
January 11, 2001s
40-year-old Terence Hunter was arrested by the New York Police Department for writing a letter to
Staten Island
borough president Guy Molinari, criticizing him for closing a community center in a
black neighborhood. According to the New York Times,
Hunter, a
Staten Island
resident, was charged with "aggravated harassment" because he called the center's closing
a "high-tech lynching" and his
letter to Molinari included photographs of blacks being lynched. Hunter was
released
the next day when the
Staten Island district attorney's office announced it was refusing to prosecute the case.
Molinari admitted that, although he found Hunter's letter offensive, there was
no threat involved.

An entirely different fate befell 69-
year-old Englishman Robert Birchall in May 2000. Birchall was convicted of "the public offense of using racially
threatening or abusive words" and fined £100. The magistrate told Birchall that the fine would have been much higher if
he had had a "substantial income." Birchall, a retired academic, had allegedly
told Mungai Mbaya (a British citizen born in
Kenya
) to "go back to your country" during a dispute in the
Cambridge Central Library. It seems that Mbaya had two newspapers in his possession at one
time--contrary to an unwritten library rule--and Birchall had been looking for a
copy of one of them.

Birchall, while admitting he was angry at the time, denied using the
objectionable phrase, lamenting, "It's political correctness gone mad. I'm not a racist and I
wasn't being racist. I was brought up with people from mixed races and have been
around them all my life." No matter. Birchall was convicted of violating race
discrimination laws recently enacted in Great Britain .

As the contrasting
Staten Island
and Cambridge
cases illustrate, the United States has not yet followed Great Britain's lead in turning offensive speech into a crime. In the United States, saying "go
back to your country" would probably result in trouble for a university
professor or
for an employee of most corporations, but it wouldn't even come close to a
criminal offense.

The greatest threat to free speech and
civil liberty in
Europe
may not, however, be national governments infected with extreme political correctness, but the
European
Union. On March 6, 2001,
the European Court of Justice provided the British people with a vision of things to
come, when it rendered a ruling in Connolly
v.Commission
that, in essence, resurrected the legal monstrosity of seditious libel.

Mr. Connolly had been an E.U. staff official, working on monetary policy. During
a three-month unpaid leave from his position, he published a book entitled
The Rotten Heart of Europe : The Dirty War for Europe 's Money. After Connolly had initially returned to his E.U. post, the book was serialized in the Times
of
London
, and Connolly gave interviews as part of the publicity campaign for the book, during which he
remarked that:

"My central thesis is that the ERM
[Exchange
Rate Mechanism] and EMU [European Monetary Union] are
not only inefficient but also undemocratic: a danger not only to our wealth
but to our freedoms and ultimately, our peace. The villains of the story--some
more culpable than others--are
bureaucrats and self-aggrandizing politicians. The ERM is a mechanism for subordinating the economic
welfare, democratic rights and national freedom of citizens of the European
countries to the will of political and bureaucratic elites whose power-lust,
cynicism and delusions underlie the actions of the vast majority of those who
now strive to create a European superstate. The ERM has been their chosen instrument, and they have used it cleverly."

In retaliation, Connolly was fired from his E.U. job and his pension was taken
away for violating regulations governing E.U. employee conduct, which forbid
employees to publish material without permission.

The unanimous four-judge court acknowledged
that Connolly had free-expression rights and that the European Union's rule that permission be obtained before
employees publish anything had to be interpreted in light of freedom of
expression.

But the right of freedom of expression,
the court asserted, may only be exercised in a manner consistent with "the protection of the rights of others." Connolly's book had interfered with
the "rights" of the European Union itself, the court explained, because the book
"damaged
the institution's image and reputation."

It is important to note what is
not
in the
European Court of Justice's opinion. American courts have allowed some limits on
job-related political speech by government employees. But in the United States,
the restrictions must be content neutral. For example, the FBI may forbid
employees to write books that disclose FBI secrets, but the FBI may not
grant or withhold publication permission depending on whether the employee
applauds or criticizes the FBI. The Connollydecision, in contrast, was justified on the very grounds that Connolly's content
made the European Union look bad.

The E.U. court did not attempt to show
that Connolly's book was false or misleading. That Connolly had written a truthful exposé of misconduct at the European
Union
was seen by the court as making his offense all the worse.

Although the Connollycase involved enforcement of an employment regulation against an E.U. employee, nothing in the
opinion limits the court's rationale to this narrow context. Freedom of
expression, the opinion argues, may be stifled if necessary for "the protection
of the
rights of others." And the "rights of others" include the "right" of the
European
Union
to prevent damage to its own "image and reputation." The principle would certainly sustain a national government's
law forbidding criticism of the European Union. Indeed, since the European Court
of Justice can override national laws in order to enforce E.U. laws, the Connollyprinciple could conceivably be used to invalidate a nation's constitutional protection of free speech--at
least where criticism of the European
Union
or other governments is involved.

In short, Connollytakes a major step
toward reinstating the offense of seditious libel--that is, the crime of
criticizing the government so as to injure its reputation.

Historically, the truth of the statement
was no defense against the charge of seditious libel. Indeed, truthfulness harmed the government all the more. As Lord Holt put it in the 1704 English case
Rex
v.
Tuchin:
"nothing can be worse to any government than to endeavor to produce
animosities as to the management of it . . .no government can be safe unless it
is punished. "

Before
Connolly,
seditious libel had
been purged from the Anglo-American legal tradition. In
England, an important step in this direction was
Fox's Libel Act of 1792, which allowed juries to render general verdicts of
acquittal in seditious libel prosecutions. The European Union ,
though, recognizes no right to a jury trial. Cases are decided by professional government employees, not by one's
peers.

In the American colonies, there were
70 prosecutions and 50 convictions for seditious libel from 1760 to 1776. As Leonard Levy details in Origins of the Bill of Rights,
it does not appear that the First Amendment was intended to outlaw falsehoods that injured the government's
reputation. Thus, seditious libel prosecutions were still allowed in the case of
false statements. The famous 1735 jury acquittal of
New York
printer John Peter
Zenger had proved that, at least in some cases, American juries could and
would acquit based on the truthfulness of the publication in question--even if
the juries had to violate the judge's instructions.

The 1798
Sedition Act, passed by a Federalist Congress, specifically allowed truth as
a defense. But the Sedition Act was vigorously used to persecute Republicans,
which led the Republicans to adopt a more liberal standard. They argued that the
truth of political matters was often subject to honest dispute and that the
courts were given too much leeway in determining whether a publication fell
within the Sedition Act's prohibition of "false, scandalous, and malicious"
writings.

On January 7, 1800, James Madison
delivered his Report on the
Alien and
Sedition Acts--a detailed argument in favor of the
Virginia
and Kentucky
Resolutions, which had interposed the state governments of Kentucky and Virginia
to protect their citizens from the unconstitutional
acts of the federal government. Madison argued that the narrow view of the
First Amendment (Blackstone's position
in his
Commentaries
that freedom of the press consisted only in freedom from prior restraint) was meaningless if a
person could be punished after publication. The specter of potential punishment
would make writers afraid and, thus, have the same effect as prior restraint:
preventing the publication from being made in
the first place.

More fundamentally, Madison explained,
"The people, not the government, possess the absolute sovereignty" --unlike in England. The very nature of
deciding whether Congress and the president deserved to be reelected required
deciding whether elected officials deserved to be held in "contempt or
disrepute" or deserved "the hatred of the people of the United States"--yet the
Sedition Act forbade creating such sentiments.

As a practical matter, if the Sedition
Acts had been in effect before the American Revolution, "might not the United States have been languishing at this day,
under the infirmities of a sickly confederation? Might they not possibly be
miserable colonies, groaning under a foreign yoke?"

Thomas Jefferson's landslide victory in
the "Revolution
of 1800" ratified this view, and the hated Sedition Act was allowed to expire ignominiously. The new
Republican view of freedom of speech dominated interpretations of the First
Amendment. At the state level, seditious
libel prosecutions began to vanish as well. Seditious libel also began to
wither
in England, although more gradually than in America.

The end of seditious libel did not completely
end the prosecution of people for criticizing the government--especially in the misnamed "Progressive" Era and
during World War I. Even then, however, prosecutors had to argue that the
defendant's speech would lead to law-breaking, either immediately or in a more
attenuated fashion. Merely harming the government's image was no longer an
offense.

The European Union touts itself as a
progressive government. But as the Connollycase illustrates, its vision of "progress" is the elimination of traditional individual rights that might
interfere with the lust for power of bureaucratic elites.

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